1. May a judge maintain a membership in SUNPAC, a political action committee?

ANSWER: No.

2. May a judge attend events hosted by SUNPAC, a political action committee?

ANSWER: The Committee is evenly divided. However, those that opine that the judge can attend a function or event hosted by SUNPAC, would allow attendance in very limited circumstances.

FACTS

SUNPAC is a political action committee that supports a strong relationship between the United States and Israel. Dues are used principally to finance events for elected officials and to make contributions to the election or re-election campaigns of those officials.

DISCUSSION

This inquiry involves the application of two sections of Canon 7 of the Fla. Code of Jud. Conduct. The relevant portions of Canon 7A(1) provide, in part, as follows:

A. All judges and candidates
(1) Except as authorized in Sections 7B(2), 7C(2) and 7(C)3, a judge…shall not: …
(b) publicly endorse or publicly oppose another candidate for public office;…
(d) attend political party functions; or…
(e) solicit funds for, pay an assessment to or make a contribution to a political organization or candidate…(emphasis added)

Canon 7D provides as follows:

D. Incumbent Judges.
A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.

The Definition section of the Code defines “political organization” as a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office. The inquiring judge has advised this committee that SUNPAC is a political action committee and its primary purposes are to finance events for elected officials and to make contributions for the election or re-election of those officials. Therefore, SUNPAC falls within the definition of “political organization,” and pursuant to Canon 7A(1)(e), it would be improper for a judge to pay any assessment to or make a contribution to this political organization.

Membership in SUNPAC is also precluded by Canon7D which prohibits a judge from engaging in any political activity, with certain exceptions which do not apply to this inquiry. SUNPAC’s primary objectives are political, that is, financing events for elected officials and contributing to the election of those officials. Since the organization’s efforts are political, membership in the organization would involve prohibited political activity.

This inquiry is distinguishable from Fla. JEAC Op. 2009-13 in which this Committee opined that membership in the National Rifle Association was not prohibited by the Code. The Committee determined that the NRA, although a major political force, was an educational organization, and its lobbying and political action was through the National Rifle Association Institute for Legislative Action (ILA) which is the lobbying arm of the NRA. The Committee relied in part upon Fla. JEAC Op. 2000-22 which opined that the NRA, while involved in political matters, is neither a “political party” nor a “political organization” as defined in the Code. However, the Committee advised the inquiring judge not to become personally involved in the NRA’s lobbying or fundraising efforts and not to participate in the NRA’s Institute for Legislative Action. The organizational purpose of SUNPAC, in a political sense, is similar to the organizational purpose of the NRA’s Institute for Legislative Action, thus precluding membership. An outstanding discussion of the issues involved in this inquiry and the opinions considered in resolving the NRA inquiry can be found in Fla. JEAC Op. 2009-13.

The Committee is evenly divided in resolving the second inquiry. One half is of the opinion that, due to the SUNPAC’s stated political purpose, the judge would be prohibited from attending any of its functions. To do so would give the appearance that the judge is supporting SUNPAC’s political positions and candidates it endorses. Therefore, the judge would be lending the prestige of judicial office to SUNPAC’s political positions and candidates it endorses, in violation of Canons 2B and 7.

The other half is of the opinion that, although SUNPAC is a political organization, it is not a political party. Therefore, mere attendance at an event may be permissible under very limited circumstances. The judge could attend only if the event was not a political party function (Canon 7A(1)(d)), the judge does not pay a fee to attend (Canon 7A(1)(e)), the judge’s attendance cannot be construed to be a public endorsement of a candidate (Canon 7A(1)(b), and the judge does not actively engage in any political activity (Canon 7D).

Although we cannot prejudge a particular event, in making the determination of whether the event is appropriate to attend, the judge should take into account not only subject of the program but also the advocacy of the organization. The more zealous, and the more one-sided the advocacy of the organization, the more weight the judge should give that factor in deciding whether to attend or not. If an organization had historically taken a very consistent, unwavering position on a highly political issue, that would create the rebuttable presumption that an event they were sponsoring on that issue was not informative but instead was an exercise in advocacy. That presumption could be rebutted by advance publicity concerning the event, the bent of the speakers, the location of the event and the totality of circumstances surrounding the event.

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.